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CRITICAL ANALYSIS ON SURROGACY REGULATION ACT,2021
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CRITICAL ANALYSIS ON SURROGACY
REGULATION ACT,2021
AUTHORED BY - SACHIN K S
Abstract
After many years of struggle, Parliament
finally approved the Surrogacy (Regulation) Act, 2021, bringing the surrogacy
practice under control. On January 25, the Union Government published a notice
in the Official Gazette announcing the Act's implementation. In order to help
women who are unable to conceive despite using multiple reproductive procedures
to fulfill their desire for motherhood while also preserving the rights and
dignity of the surrogate mother, bills to regulate surrogacy have been approved
in India. The Act, however, has a number of gaps that we will describe below,
leaving many significant issues unanswered. In order to act in the greatest
interests of the people, I want to emphasize how crucial it is to alter the
Work to make it more inclusive and transparent. The Act has mostly been
criticized for its restrictions on who can use surrogacy services, the
exclusion of non-binary gender, the ban on commercial surrogacy, the
requirement to include traditional surrogacy, and the challenges that medical
professionals may have as a result of the law's ambiguity.The progressive law,
which aims to open up surrogacy to those who are unable to have children, has
failed to be progressive because it is exclusive and unclear in its phrasing,
opening it up to much discussion and incorrect interpretation. This law still
fixed many gaps like same-sex marriage and individual parent to go through the
process of surrogacy but it has many issues in the rights of the surrogate
mother and the moral aspects of them .This paper analyses the amended act of
The Surrogacy Regulation Act , 2021 and it’s major issues .
Keywords:
Surrogacy regulation act 2021, motherhood , ethical
rights , same-sex marriage ,rights of surrogate mother, commercial surrogacy
Introduction
The
word “ Surrogate” means substitute which is originated from a latin term
“surrogates” that’s when a person is appointed to act in place of an another person.“It
is the practice by which a woman (called a surrogate mother) becomes pregnant
and gives birth to a baby to give it to someone who cannot have children.”[1].Nature
has given women the capacity to procreate, and every woman values the mothering
experience. But as infertility rates rise and technology advances, surrogacy is
becoming more and more popular. Adoption is the usual method, while assisted
reproductive technology (ART), which involves achieving pregnancy partially or
entirely artificially, is the unconventional method.
Surrogacy was first recognized legally
about 30 years ago. However, looking back, it's clear that most societies
accept the idea of surrogacy. The first successful artificial insemination
surrogacy took place unethically in 1881. It has faced a tremendous lot of
opposition and debate since then.Before 1976, when an advocate created the
first conventional surrogacy agreement, there was no proper legal structure.
The surrogate mother was not paid in any way. The first IVF (In Vitro
Fertilization) child was born in 1978. There was no legal enforceability in any
nation.
Ethical aspects
in Surrogacy
Despite the mere fact that surrogacy has
been advantageous for everyone involved , there are certain sensitive factors
that must be handled carefully with the legislation to protect and safeguard
the rights of intended parents and surrogate mothers. Few also believe that
using commercial surrogate for buying and selling a woman’s womb is
immoral.Affluent and powerful infertile couples would acquire and take
advantage of the poor, needy Indian women who would become the source for
bearing the child.
Surrogate parenting is unnatural and
immoral because it forcefully “breaks” the bond which is emotional between the
child and the biological mother.[2] We
usually neglect the biological child and fail to recognise the potential trauma
associated with the mother giving her child up for adoption.[3] This
has ethical implications about the child's right to know the mother
(surrogate); how the surrogate mother's emotional traits affect the behaviour
of the surrogate child; social exclusion; and a host of other societal and
religious ramifications.It is ironic that people use surrogates yet there are
over 12 million orphans in India. In India, adopting a kid is a challenging and
drawn-out process for childless couples who desire to provide these children
with a home.[4]
Prohibition of commercial surrogacy
In
India, commercial surrogacy is legalized in 2002; nevertheless, the absence of
a comprehensive set of regulations regulating the procedures of
commercialization resulted in the abuse of the surrogates, where they were made
to live in unhygienic conditions among other issues.In 2009, the Law Commission
of India recognized the exploitation which happens in the form of unlicensed
surrogacy practices and also recognized the need for creating regulations for
safeguarding people’s rights.
The
Act of 2021 prohibits commercial surrogacy and solely recognizes altruistic
surrogacy. Altruistic surrogacy is defined as no remuneration offered to the
surrogate other than expenses recommended or spent owing to insurance coverage
or medical expenses. Meanwhile, commercial surrogacy happens when, in addition
to the surrogate's medical bills and other mandated expenses and insurance
coverage, her services are commercialized and she receives "payment,
reward, benefit, fees, recompense, or monetary incentive in cash or kind.
"Given the potential for surrogate exploitation, it is imperative to
regulate the surrogacy industry. Regulating commercial surrogacy, however, is
not the same as outright banning it. Commercial surrogacy is forbidden after
the Act takes effect, according to Section 3(ii). Under Section 38(ii) of the
Act, commercial surrogacy is a crime punishable by up to ten years in prison
and a fine of up to ten lakh rupees. If found engaging in the same practise
again, the punishment may be raised to ten years in prison and a fine of up to
ten lakh rupees. The individual seeking commercial surrogacy faces up to five
years in prison and a fine of up to five lakh rupees.
In
the case of Baby Manji Yamada, The Supreme court maintains the legality of the
agreement for surrogacy and gave the intended father - which means also the
biological father - custody of the child notwithstanding arguments between the
intended parents. However, since there is no limitation, there have been
instances where it has raised serious concerns about the child's citizenship,
making the need for surrogacy regulations even more critical.
Surrogacy laws in other countries
In
certain nations, the national government does not regulate surrogacy; rather,
individual states and provinces do. A nation or province may not be the best
choice for an international surrogacy just because there is no federal laws
outlawing it. Without rules, unethical practises might easily become possible.
If
you're considering international surrogacy, there is truly just one nation with
clear regulations that shield intended parents and surrogates from potential
legal issues: the United States. Although each state has its own surrogacy
legislation, the practise is well-regulated and the procedure is carried out
lawfully and ethically in those places where it is allowed. As a result, the
United States is typically the best choice for intended parents who are from
other countries.Other nations might allow surrogacy, but only under certain
restrictions that might make the procedure more challenging or unethical.
Intenting parents must already have a close friend or relative in that country
who is willing to take part in an altruistic surrogacy because many countries
do not authorise paid surrogacy. It may be absolutely illegal for non-citizens
to use a surrogate in some other countries, making it challenging for an
international intended parent to do so.
If
prospective parents can choose between a nation that allows surrogacy and one
that forbids it, they should choose the former. Making the decision to use a
surrogate in a nation with surrogacy restrictions may make it more difficult
for the intended parents to bring their child home.
On
the other side, some surrogacy laws may actually make the procedure safer than
in nations without such laws, so it's up to you and your attorney to decide
which course of action is best for your particular circumstance.Finally, some
governments outright prohibit all forms of surrogacy or make surrogacy
impossible to execute by rendering contracts unenforceable.[5]While
surrogacy is expected to continue in private arrangements, it is strongly
advised that you do not pursue surrogacy in one of these nations due to the
potential legal ramifications.These are the countries that do restrict
surrogacy
:Cambodia,Denmark,France,Germany,Ireland,Italy,Spain,Portugal,Bulgaria,Nepal.International
surrogacy laws are undoubtedly complex and inconsistent. The United States is
the friendliest and safest nation in which to carry out a surrogacy. Because
state laws permit commercial surrogacy and fully protect both parties to the
transaction, many foreign couples choose to have children through surrogacy in
the United States.Whatever nation you select to complete your surrogacy in, be
sure you are completely aware of the laws there regarding surrogacy and how to
protect your rights as an intended parent or prospective surrogate.
Analysis of Surrogacy regulation act
On January 25, 2022, the Surrogacy
(Regulation) Act 2021 became law. While allowing altruistic surrogacy, the Act
aims to limit commercial surrogacy. In commercial surrogacy, the surrogate
mother receives remuneration for her services in addition to reimbursement for
her medical costs. The arrangement of compensation may provide a way for
intended parents and surrogate mothers to be taken advantage of in a culture
where there is inequality. In altruistic surrogacy, the surrogate mother does
not be paid, other than for medical expenses and insurance throughout the
pregnancy.
In
India, commercial surrogacy was legalised in 2002. Due to the absence of legal
limits and their enforcement, surrogate mothers experienced exploitation,
unhealthy living conditions, and unfair treatment. The law is therefore a step
in the right direction, but it has created its own set of issues by outlawing
commercial surrogacy.
By
shifting from a rights-based to a needs-based approach, the ban on commercial
surrogacy restricts women's freedom to make their own reproductive decisions
and their right to become mothers. One could argue that the state should
protect the child's birthright and forbid the exploitation of impoverished
mothers through surrogacy. The current Act, however, falls short of finding a
middle ground between these two objectives.
The
Act directly affects women's fundamental freedom to procreate under Article 21
of the Constitution while upholding long-standing patriarchal norms that place
little importance on women's labour. The altruistic surrogacy concept assumes
that women will only undergo the physical, mental, and emotional labour of
childbirth out of compassion, which is far from the truth. Such irrational
assumptions encourage the patriarchal mindset of society and restrict the
autonomy of persons with reproductive organs. Additionally illegal is
commercial surrogacy, which deprives surrogates of a reliable source of income
and lowers the pool of potential donors. Overall, this action indirectly
rejects parent-choice couples' desire to have children.
Altruistic
surrogacy has a lot of negative aspects as well. The relationship is put in
jeopardy both during the surrogacy procedure and after the baby is born, which
can lead to emotional problems not just for the intended parents but also for
the surrogate child. Altruistic surrogacy significantly restricts the intended
couple's possibilities for choosing a surrogate mother because so few family
members are eager to participate.[6]
There
is no third-party involvement in altruistic surrogacy. A third-party
involvement ensures that the intended pair will bear and support the surrogacy
process's medical and other related expenses. In general, a third party helps
the intended parents and the surrogate mother manoeuvre the complex procedure,
which is not always possible with altruistic surrogacy.
The
Bill then specifies the eligibility requirements for couples thinking about
surrogacy. The eligible couple should receive "certificates of
eligibility" and "certificates of essentiality" from the
appropriate authorities. A person who wants to become a parent through
surrogacy must additionally fulfil the following extra criteria:
? Heterosexual pair (opposite gender) with
a guy aged 26 to 55 and a woman aged 25 to 50.
? The couple should be married for a
minimum of five years.
? Should not have any additional children,
biological, adoptive, or surrogate. The Act, however, exempts couples who have
children with (a) a physical/mental handicap or (b) a life-threatening ailment
from this requirement.
The
Act also stipulates that a couple must wait five years (counting from the date
of marriage) before receiving a certificate of infertility. The inability of
the partners to begin a family sooner is directly hampered by this disease.
The
Act's age restrictions for men and women further support patriarchal beliefs
that men should be older than women. It is also silent regarding the process to
use if just one parent qualifies for the provision and the other does not.[7]
The
Act also stipulates that the surrogate must be a near cousin of the husband who
is between the ages of 25 and 35. As a result of family pressure to employ
surrogates for other relatives, this requirement may result in physical abuse
and domestic violence.
The
law discriminates against children with disabilities. The Act defines
childlessness as the absence of children who lack basic necessities. It also
suggests that, if they have a child with a serious illness, a couple look into
surrogacy. Children with disabilities are treated inhumanely by this section,
which directly violates their rights.
“This
law is a kind of discrimination against young people with impairments. The Act
defines having special needs children as being childless. It also advises
contemplating surrogacy if the couple's child suffers from a serious illness.
This provision directly infringes on the rights of the disabled children,
depriving them of treatment in accordance with dignity.”[8]
The Act is an insult to both the LGBTQ+ community and single fathers who want
to start a family. 15% of the population belongs to the LGBTQ+ community, and
20% of those looking for surrogacy are single parents. This statute is a
response to past legislation supporting the LGBTQ+ community, such as the Right
to Privacy and Section 377's prohibition. Furthermore, the Act breaches the
right to parenthood for members of the LGBTQ+ community and single fathers, as
established by the Supreme Court of India in Article 21, by restricting the Act
to cis-gender heterosexual couples and single moms (widows and divorced).In
conclusion, despite what appear to be good intentions and thoughtful plans to
protect surrogate mothers, they reinforce society's typical patriarchal values
by assuming heterosexual marriage as the basis for parenthood, which violates
the fundamental rights of the LGBTQ+ community, single men and women, and other
vulnerable groups.
Lacunae
in the Surrogacy (Regulation) Act, 2021
The Surrogacy (Regulation) Act, 2021 was eventually enacted
by Parliament last year after years of conflict, placing the surrogacy practise
under regulation. The Union Government announced the Act's implementation via
an official gazette notice that was published on January 25. Bills to regulate
surrogacy have been approved in India in order to assist women who are unable
to conceive despite utilising numerous reproductive procedures to fulfil their
desire for parenthood while also protecting the rights and dignity of the
surrogate mother.However, aside from a few gaps that we will explore below, the
Act leaves some important matters unsolved. By making changes when necessary to
act in the best interests of the public, I try to emphasise how important it is
for the Act to become more inclusive and transparent. The Act has mostly been
criticised for its restrictions on who can use surrogacy services, its
exclusion of non-binary gender, its ban on commercial surrogacy, its omission
of traditional surrogacy, and the challenges that medical professionals may
encounter as a result of the law's ambiguity.Even
though India's Surrogacy (Regulation) Act of 2021 is the first law to govern
surrogacy practises, societal hostility to the procedure still exists,
especially when the intended mother lacks a viable egg and needs an egg donor
for the surrogacy. [9]The
Act's flaws have caused a variety of concerns, not only in the minds of couples
exploring surrogacy as a means of embracing motherhood but also in the minds of
medical professionals. The progressive law, which aims to open up surrogacy to
those who are unable to have children, has failed to be progressive because it
is exclusive and unclear in its phrasing, opening it up to much discussion and
incorrect interpretation.
Conclusion
In
India, surrogacy is legal. However, making it commercial is against the law.
Surrogacy is a humanitarian act that is legal. It is illegal under Indian law.
Commercial surrogacy should be avoided by no couple. Surrogacy falls within the
category of reproductive choices for women, and it is recognised as a
fundamental right under Article 21 of the Indian Constitution.
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Article Information
CRITICAL ANALYSIS ON SURROGACY REGULATION ACT,2021
Authors: SACHIN K S
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/27
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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